Her Majesty the Queen - v. -, 2022 SKPC 1

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2022 SKPC 1 Date: January 7, 2022 Information: 90403683, 90403593, 85412869, 85412870 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Alfred Legacy Appearing: Andrew Wyatt For the Crown David Kreklewich For the Accused JUDGMENT R. GREEN , J I. INTRODUCTION [ 1 ] Mr.

Legacy is charged with impaired driving and failing or refusing to comply with a breath demand under the Criminal Code and with failing to notify an owner of property damage and failing to report an accident immediately to the nearest police under The Traffic Safety Act , SS 2004, c T-18.1 [ TSA ]. [ 2 ] On September 12, 2020 Mr. Legacy was driving his common law’s motor vehicle in Grayson and parked in front of the St.

Marie Bernard Hospice, where his common law Lois Macaloney is employed. Karen Seitz, director of the hospice, was leaving work and spoke to him through the door of his vehicle. After speaking to him, Ms. Seitz formed the opinion that Mr. Legacy was intoxicated. Mr. Legacy then drove off and in so doing collided with a vehicle parked near the hospice which belonged to Margaret Temple, another hospice employee. [ 3 ] The Melville police were contacted by telephone and Cst. Jason Gnanathayalan drove from Melville to Grayson, a 25-minute drive, and interviewed both Ms. Seitz and Ms. Temple.

As a result, the police officer believed he had the grounds to arrest Mr. Legacy for impaired driving and drove to Mr. Legacy’s house in Grayson to do so. There, the officer knocked on the door, spoke briefly to Mr. Legacy’s spouse Lois Macaloney and then went inside the house and arrested Mr. Legacy. [ 4 ] The defence alleges that the police officer’s warrantless entry into Mr. Legacy’s house was an unreasonable search contrary to his right to be protected from this under s. 8 of the Canadian Charter o f Rights and Freedoms [ Charter ].

As a result, under s. 24(2) of the Charter , the defence seeks to exclude all the evidence which arose following Cst. Gnanathayalan’s entrance into this house. [ 5 ] The trial began with a voir dire in which the Crown presented three witnesses: Ms. Seitz; Cst. Gnanathayalan; and Cst. William Coder, the breath technician who attempted without success to take a suitable sample of breath from Mr. Legacy. The defence called no evidence on the voir dire or on the trial.

It was agreed by the parties that the admissible evidence from the voir dire was to be applied to the trial on all of the charges. [ 6 ] In my view, having considered the evidence and the arguments of counsel, the issues to be determined are: i. Did Cst. Gnanathayalan’s warrantless entry into Mr. Legacy’s house constitute an unreasonable search contrary to Mr. Legacy’s right to be free from this under s. 8 of the Charter ? ii. Was there proof beyond a reasonable doubt that Mr. Legacy failed without a reasonable excuse to comply with a breath demand by failing to provide a suitable sample of his breath to Cst.

Coder? iii. Was there proof beyond a reasonable doubt that Mr. Legacy was driving while impaired by alcohol? and iv. Were the TSA infractions proved beyond a reasonable doubt? II. BACKGROUND [ 7 ] Ms. Seitz finished her shift at 11:00 p.m. this day. As she walked to the hospice’s parking lot she saw a grey Chevy motor vehicle, driven by Mr. Legacy, pull up and park beside the sidewalk. This drew her attention because there is little traffic in Grayson at this time of night and one of her employees, Margaret Temple, was still at work inside in the hospice. She knew Mr.

Legacy because his spouse Lois Macaloney was an employee at the hospice and because he had been a next-door neighbour of hers for 15 years. She knocked on the driver’s side window of his vehicle and Mr. Legacy appeared flustered and could not open his front window but, rather, opened both back windows of the vehicle by mistake. [ 8 ] Mr. Legacy then opened his door to speak with Ms. Seitz. Ms. Seitz said she smelled a strong smell of alcohol coming from him and that he was slurring his words and mumbling. Mr. Legacy said to her “I am here to pick up Lois”. Ms. Seitz told him that Ms.

Macaloney was not working that day and Mr. Legacy then asked Ms. Seitz “Where the fuck is she?” Ms. Seitz responded, “I have no idea”. [ 9 ] Ms. Seitz said she was about one foot away from Mr. Legacy at that point, and in her opinion Mr. Legacy was very impaired by alcohol. She drew that opinion because of the way he smelled and spoke and because she had seen him both drunk and sober over the many years that she had known Mr. Legacy. Mr. Legacy then put his vehicle into motion and drove forward about twenty feet and in her words “turned too sharp” and collided with Ms. Temple’s parked vehicle. As a result, Ms.

Seitz went back into the hospice to call 911, but after she told Ms. Temple what had happened, Ms. Temple called 911. [ 10 ] Cst. Gnanathayalan was on duty in Melville and received a call around 11:00 p.m. from the RCMP dispatch operator about a complaint from Margaret Temple at the Grayson Hospice. The complaint was that Alfred Legacy had driven into her vehicle in the

parking lot and then driven away and that another worker, Karen Seitz, had spoken to him and believed Mr. Legacy to be impaired by alcohol. [ 11 ] This police officer drove to Grayson and between 11:30 and 11:40 p.m. spoke to Ms. Temple and then spoke to, and took an audio statement from, Ms. Seitz. In that statement Ms. Seitz described to him her conversation with Mr. Legacy in front of the hospice in which he said he was there to pick up his spouse who was employed at the hospice but was not working that day, her opinion of his intoxicated condition, how he collided with Ms.

Temple’s parked vehicle, and that Mr. Legacy had driven off in the direction of his house on Killaly Street in Grayson. [ 12 ] Based on that statement, Cst. Gnanathayalan was satisfied he had grounds to arrest Mr. Legacy for impaired driving and set out to do this. He knew Mr. Legacy from previous dealings with him and as well knew where he lived. As a result, he drove to his house on Killaly Street. Outside that house on the driveway he saw a grey Chevy motor vehicle which matched the description given to him by Ms. Seitz, and which he discovered from his police computer was registered to Mr.

Legacy’s common law spouse Lois Macaloney. [ 13 ] At the residence, he opened the front gate and walked up to the front door. As he walked forward, he noticed that the screen door was closed but the inside door was open, and he saw Ms. Macaloney inside. When she looked up and saw the police officer, she closed the inside door. He then went up to the front door and knocked on it. [ 14 ] Ms. Macaloney answered, and the police officer told her that he wanted to speak to Al Legacy. She asked him why.

He initially did not tell her but eventually he told her that the reason he wanted to speak to him was that people had seen him driving drunk this night in Grayson. Ms. Macaloney called to Mr. Legacy a number of times but then returned and said he could not come to the door because he needed the assistance of a walker and could not make it to the door. [ 15 ] Cst. Gnanathayalan said that Ms. Macaloney then invited him into the house.

The officer said that, because he was working alone with no back up officers available and being 25 minutes away from the Melville detachment, he was cautious and wanted to ensure that he kept both Ms. Macaloney and Mr. Legacy in front of him. He said that both individuals were clearly intoxicated and belligerent and as a result, in his view, were unpredictable. He walked the short distance down to the hall and saw Mr. Legacy sitting in the living room drinking from a cup with a clear substance in it. He asked Mr. Legacy how much he had to drink and got no response from him. Mr.

Legacy then made what the officer viewed as a few angry and random statements, which included that he should shove his flashlight up his ass and that he should “get the fuck out”. After this short conversation, Cst. Gnanathayalan placed Mr. Legacy under arrest and then took Mr. Legacy out to the police vehicle with the help of his walker and the assistance of Ms. Macaloney. He was not handcuffed but was placed into the back of the police vehicle. [ 16 ] At 12:22 a.m. Cst. Gnanathayalan read to Mr. Legacy an explanation of his right to contact a lawyer, the police warning and the formal breath demand.

He said that, on the drive back to Melville, Mr. Legacy was mumbling and made random statements throughout the trip. They arrived at the Melville detachment at 12:52 a.m. At 12:56 a.m., Mr. Legacy said he did not want to call a lawyer. Cst. Gnanathayalan then commenced the first 15-minute observation of Mr. Legacy before Cst. Coder attempted to obtain a breath sample from him, a testing procedure that Cst. Gnanathayalan observed. [ 17 ] Given his interaction with Mr.

Legacy this night – which included the smell of alcohol on him, his behaviour in his presence and his slurred, disjointed and incoherent speech - and based on his experience as a police officer, Cst. Gnanathayalan believed Mr. Legacy was a 9 on a 10-point scale of impairment. He said Mr. Legacy did not mention any medical issues to him, and he did not see him have any problems in breathing, nor did Mr. Legacy at any time have trouble speaking because a lack of breath. [ 18 ] Cst. Coder is qualified to perform breath tests on the Intox EC IR 2 approved instrument. He was contacted by Cst.

Gnanathayalan this night to come to the Melville detachment to take breath samples from Mr. Legacy. With this breath instrument functioning properly, he attempted to take suitable samples of breath from Mr. Legacy but was unable to. Mr. Legacy tried twelve times but failed to provide a suitable sample because he would not continue blowing as instructed by Cst. Coder and did not otherwise follow his instructions. Cst. Coder said Mr. Legacy appeared disoriented and, on one occasion, appeared to put his tongue over the breathing tube which resulted in another failed attempt. [ 19 ] Cst.

Coder said that, during one of Mr. Legacy’s attempts to provide a sample, he told the officer that he could not blow as he had a blood clot in his lung but that his doctor was taking care of this. Cst. Coder – who himself had a health issue with one lung as part of that lung had been removed because of cancer – said he tested the same instrument that night by blowing into it and he had no problem in providing a suitable sample of breath. He said Mr. Legacy did not appear to be having any problems breathing and was not out of

breath or gasping for air after any of his twelve attempts at providing a sample. This police officer’s conclusion, after dealing with Mr.Legacy this night, was that he was avoiding the provision of a suitable sample and was intent on not following the officer’s instructions. III. WAS THE OFFICER’S WARRANTLESS ENTRY INTO MR. LEGACY’S HOUSE AN UNREASONABLE SEARCHCONTRARY TO S. 8 OF THE CHARTER? [20] The defence submitted that the sole purpose Cst. Gnanathayalan attended at and entered Mr. Legacy’s house was toinvestigate and obtain evidence against him for a suspected impaired driving offence.

Further, the defence submitted that the actions ofthis officer in entering the residence without a warrant exceeded any implied license the officer had to attend onto the property of Mr.Legacy or to knock on his door, and as a result his warrantless entry constituted an unreasonable search contrary to Mr. Legacy’s right tobe protected from this under s. 8 of the Charter.

For the reasons that follow, I disagree. [21] In R v Rogers, 2016 SKCA 105, 341 CCC (3d) 502, Madam Justice Jackson, citing the Supreme Court’s decision in R vEvans, (SCC), [1996] 1 SCR 8, said this about the limits of the license afforded a police officer when he or sheattended at a house for the purposes of securing evidence against the occupant: … I have concluded that if a trial judge finds on all of the evidence a police officer knocked on the door to a residence for the purpose ofsecuring evidence against the occupant, the officer is conducting a search within the meaning of s. 8 of the Charter.

This principleapplies equally to drinking and driving offences as well as to other offences where observing the person opening the door will givevisual, auditory and olfactory clues about the person's participation in the crime under investigation. Evans remains the leading authorityon point … (at para 29) [22] In this case, however, I am not satisfied that Cst. Gnanathayalan went to Mr. Legacy’s house for the purpose of securingevidence against him. I am satisfied that this police officer had lawful grounds to arrest Mr. Legacy for impaired driving and went to hisresidence to arrest him for that offence.

The question, however, is whether the officer’s entry into Mr. Legacy’s house to effect thatarrest was lawful. [23] A civil law case, Tymkin v Ewatski, 2014 MBCA 4, 299 Man R (2d) 294 [Tymkin] is directly on point. Mr. Tymkin suedpolice officers from the Winnipeg Police Service for malicious prosecution, false imprisonment, and battery, as a result of thewarrantless entry by several officers into the boarding house he lived in to arrest him. The issue became whether the entry by theofficers into the boarding house, and then Mr.

Tymkin’s residence within it, was lawful, especially considering the Supreme Court ofCanada’s decision in R v Feeney, (SCC), [1997] 2 SCR 117 [Feeney] which held that warrantless arrests in a privatedwelling were prohibited except for some limited exceptions.

Feeney resulted in new provisions in the Criminal Code which set out aprocess for the police to obtain a warrant to enter a dwelling house to arrest a subject (ss. 529 – 529.5). [24] In Tymkin, the police officers claimed their warrantless entrance into the building was lawful and an exception to the limits setout in Feeney, because they were given consent to enter the boarding house by a man inside that house. Similarly, in this case, theCrown submitted that Cst. Gnanathayalan’s warrantless entry into this residence to arrest Mr. Legacy was lawful as he was invited in, orgiven consent to enter, by Mr.

Legacy’s common law spouse Lois Macaloney. [25] In Tymkin, Monnin JA explained this exception to the police obtaining a so-called Feeney warrant as follows: … another exception to the need for a Feeney warrant for an arrest in a dwelling-house has been held where police were given consent toenter a residence for the purpose of arresting someone within.

In those situations, the nature of the consent, including the issue ofwhether it was obtained from someone having a privacy interest and whether it was sufficiently informed, are factors to be considered inassessing whether the arrest was lawful. (at para 78) [26] In Tymkin, the Court of Appeal was satisfied from the evidence at the trial that the man who gave the consent to the police toenter this house was only an overnight guest at the boarding house and, as a result, did not have a sufficient privacy interest in the houseto give a valid consent to enter it to the police.

In this case, however, I am satisfied that Cst. Gnanathayalan received a valid consent toenter this residence from Lois Macaloney. That is because I am satisfied that:

(1) Ms. Macaloney had a sufficient privacy interest in this residence to give a valid consent of entry to the officer given that: (

a) she was

the common law spouse of Mr. Legacy; (

b) she was present with Mr. Legacy in the residence at midnight this day, and (

c) her vehicle, which Mr. Legacy had been operating shortly before, was parked in the driveway of this residence; and

(2) Although Cst. Gnanathayalan did not state that he was there to arrest Mr. Legacy, he did tell Ms. Macaloney that he wanted to speak to Mr. Legacy because people had reported that he was driving drunk in Grayson that night before she invited him in and, therefore, I find that Ms. Macaloney did have sufficient information to give a valid consent to the officer to enter this residence. [ 27 ] In

summary on this application, I am satisfied that:

(1) Cst. Gnanathayalan had lawful grounds to arrest Mr. Legacy for impaired driving after he took a statement from Karen Seitz;

(2) This officer attended to Mr. Legacy’s residence to arrest him for impaired driving and not for the purpose of securing evidence of an offence by him;

(3) This officer received a valid consent from Ms. Macaloney to enter this residence; and

(4) As a result, both the officer’s entrance into this residence and his subsequent arrest of Mr. Legacy were lawful. [ 28 ] The fact that, in dealing with Mr. Legacy and Ms. Macaloney and then in effecting the arrest of Mr. Legacy, Cst. Gnanathayalan had a brief conversation with Mr. Legacy and made observations of him that confirmed in his mind that Mr. Legacy was intoxicated, belligerent and incoherent does not, in my view, change his purpose for entering the house or render his entrance or his arrest of Mr. Legacy unlawful. [ 29 ] Taken together, I am not satisfied that this police officer’s entrance into Mr.

Legacy’s residence constituted a breach of Mr. Legacy’s rights under s. 8 of the Charter . Mr. Legacy’s application under s. 24(2) of the Charter is dismissed, and all of the evidence from the voir dire is applied to the trial on all of the charges. IV. DID MR. LEGACY FAIL TO COMPLY WITH A BREATH DEMAND? [ 30 ]

Section 320.15(1) of the Criminal Code provides that a person commits an offence if he knows a demand to supply a breath sample has been made to him and he fails or refuses, without a reasonable excuse, to comply with that demand. I accept that Mr. Legacy knew that a breath demand had been made to him, as he confirmed to Cst. Gnanathayalan at 11:35 p.m. in Grayson that he understood the breath demand that had just been read to him.

But did he fail or refuse to provide a sample, and if so, did he have a reasonable excuse for doing so? [ 31 ] The defence submitted that the Crown had not proved beyond a reasonable doubt that Mr. Legacy willfully refused to provide a breath sample or that he willfully tried not to provide one. The Crown, however, claimed that Mr. Legacy failed without a reasonable excuse to provide a suitable sample to Cst. Coder. As a result, in my view the first issue to be determined is whether Mr.

Legacy failed to provide a breath sample. [ 32 ] Based on the evidence of both police officers, including a detailed account by Cst. Coder of each attempt at providing a sample by Mr. Legacy, I am satisfied that he did. That is because I find that: (1) the approved instrument Cst. Coder was operating was functioning properly; (2) the officer explained and re-explained to Mr. Legacy how he was to blow into the instrument; and

(3) Mr. Legacy, in the presence of both officers, failed to provide a suitable sample of breath in twelve attempts at doing so. [ 33 ] The remaining issue is whether Mr. Legacy had a reasonable excuse for this failure which, in turn, would raise a reasonable doubt on his guilt. For the reasons that follow, I am not satisfied he did. [ 34 ] The only evidence which suggested a potential excuse for Mr. Legacy came from the testimony of Cst. Coder when he said that, during one of Mr.

Legacy’s attempts to provide a sample, he told the officer that he could not blow as he had a blood clot in his lung but that his doctor was taking care of this. No other evidence supported or explained this comment. [ 35 ] In determining whether any health issues provided a reasonable excuse for Mr. Legacy’s failure to provide a suitable sample, I

accept Cst. Coder’s evidence that:

(1) Mr. Legacy appeared to him to put his tongue over the breathing tube on one failed attempt;

(2) Mr. Legacy was not out of breath or gasping for air after any of the twelve attempts;

(3) After watching him on the twelve attempts, as an experienced breath technician, he formed the opinion that Mr. Legacy was avoidingthe provision of a suitable sample and was, as well, intent on not following the officer’s instructions; and

(4) This officer, even after having a part of his lung removed as a result of cancer, was able to provide a suitable sample of breath intothis instrument. [36] Considering the totality of the evidence on this issue, I agree with the Crown prosecutor’s argument that the possibility that aproblem with Mr. Legacy’s lung made it impossible for him to provide a suitable sample of breath is entirely speculative. In my viewthis excuse, evidenced only by a brief comment from Mr. Legacy reported by Cst.

Coder and with no other elaboration or support to it inthe evidence, does not constitute a reasonable one, especially considering Mr. Legacy’s demeanor and actions during the twelveattempts. [37] Taken together, I am satisfied beyond a reasonable doubt that Mr. Legacy knew a breath demand to supply a breath samplehad been made to him and that he failed, without a reasonable excuse, to comply with that demand. He is found guilty of the refusalcharge on Information 90403593. V. WAS MR. LEGACY’S ABILITY TO DRIVE IMPAIRED BY ALCOHOL? [38] On the impaired driving charge, I must be satisfied that Mr.

Legacy’s ability to operate a motor vehicle was impaired byalcohol and he is entitled to any reasonable doubt I have on this issue. At the same time, if “the evidence of impairment establishes anydegree of impairment ranging from slight to great, the offence has been made out” (as per the test confirmed by the Supreme Court ofCanada in R v Stellato, (SCC), [1994] 2 SCR 478 [Stellato]). The defence submitted that given the brief nature of theencounter between Ms. Seitz and Mr. Legacy this night and the lack of any evidence of damage to Ms.

Temple’s vehicle that the Crownhad not proved impairment beyond a reasonable doubt. I disagree. [39] I accept Ms. Seitz’s evidence that:

(1) Mr. Legacy smelled heavily of alcohol;

(2) He was slurring and mumbling his words;

(3) Ms. Seitz had known Mr. Legacy for many years, and had seen him sober and drunk many times, and her opinion this night was thathe was intoxicated;

(4) Mr. Legacy was disoriented when they spoke and opened both back windows when he tried open his driver side front window;

(5) Mr. Legacy said he was there to pick up his spouse, who was not working that day; and

(6) When he drove away, he failed to negotiate his exit from the hospice and collided with Ms. Temple’s vehicle. [40] I, as well, accept Cst. Gnanathayalan’s evidence that Mr. Legacy smelled of alcohol and had slurred, disjointed and incoherentspeech when he observed him in close proximity for at least an hour this night and the officer’s opinion, based on his experience as apolice officer, that Mr. Legacy was 9 on a 10-point scale of impairment. [41] Taken together, I am satisfied beyond a reasonable doubt, after applying the test from Stellato, that Mr. Legacy’s ability tooperate a motor vehicle was impaired by alcohol, and he is found guilty on that charge on Information 90403683.

VI. THE TSA CHARGES [ 42 ] The TSA contains no definition of “accident”. However, The Automobile Accident Insurance Act , RSS 1978, c A-35 [ AAIA ] - which is referred to in many sections of the TSA dealing with the results of an accident - defines “accident” (in s. 2 (a)) as meaning any event in which property damage or bodily injury is caused by a motor vehicle. [ 43 ] Mr. Legacy is charged with failing to notify an owner (presumably Ms. Temple) of property damage under s. 253(2)(

a) of the TSA and with failing to report an accident immediately to the nearest police under s. 253(3) (

a) of the TSA . While Mr. Legacy’s collision with Ms. Temple’s vehicle was relevant on the question of impaired driving, nevertheless, there was no evidence of damage to either vehicle or of bodily harm to anyone involved in this collision outside the hospice. [ 44 ] As a result, and adopting the definition of “accident” from the AAIA , I have a reasonable doubt that Mr. Legacy is culpable for failing to notify Ms. Temple of property damage or for failing to report an accident immediately to the nearest police. Mr. Legacy is found not guilty of the charges on Informations 85412869 and 85412870. ____________________ R. Green, J